HAPPENING NOW: Senate Hearing on Restoring War Powers to Congress

Senator Rand Paul held a hearing on Wednesday afternoon exploring the financial and constitutional implications of open-ended war under the existing Authorization for Use of Military Force (AUMF) and the potential ramifications if Congress adopts the revised authorization proposed by Senators Bob Corker and Tim Kaine.

The hearing was entitled, “War Powers and the Effects of Unauthorized Military Engagements on Federal Spending” and featured testimonies from Judge Andrew Napolitano, Deputy Director of the ACLU Washington Legislative Office Christopher Anders, and Georgetown Professor Jonathan Turley. The line to get into the hearing was so long that wrapped around the corner of the hall.

Senator Paul explained in his opening remarks that the debate before Senate comes down to “does it matter who wields the power to initiate war” and “when and where should we be at war”?

“After the attacks of 9/11, President Bush did his Constitutional duty. He asked Congress to authorize war against the people who attacked us on 9/11 or anyone who harbored or aided and abetted those who attacked us,” Senator Paul explained.

The Kentucky Senator told the Senate that if you read the authorization, it’s actually very specific. “Bush originally asked for more expansive language but Congress insisted on narrowing the mandate to use force against only those who either attacked us or planned the attack or harbored the attackers.”

Senator Paul repeatedly asserted that the authorization was specific and meant to be directed at those who attacked us on 9/11, not for a worldwide war on “terrorism” that would go on for decades. So, basically the expansion of the “war on terrorism” really has occurred without the required Constitutional authorization.

“Senators Corker, Kaine and others wish to rectify the lapse in Constitutional declaration of war by passing a new authorization for force,” Senator Paul said of the proposed AUMF. He explained that “the Corker/Kaine Authorization does not limit the scope of war it merely codifies the status quo and I would argue actually expands the current theaters of war.”

The Corker/Kaine proposal authorizes war against at least eight groups that are known to operate, all- together, in over 20 countries.

Appearing on Fox News on Tuesday, Senator Paul had asserted that he believes President Trump agrees with him. He said, “I do think the president is with me on this — on the Constitution. Our founding fathers are with me on this too.”

“The constitution is flipped on its head. This authorization fundamentally transfers the delegated power of war declaration from Congress to the President,” Senator Paul declared during the hearing.

Turley has testified before Congress many times, but believed this hearing was so important that he pulled both of his children out of school to attend it.

During his testimony, Turley argued that the new AUMF amounts to a statutory revision of one of the most defining elements of the United States Constitution.

“Putting aside the constitutionality of such a change absent a formal amendment, the proposed legislation completes a long history of this body abdicating its core responsibilities over the declaration of war,” Turley stated.

He said in conclusion that “the new AUMF would codify the long-sought desire of Congress to be a mere pedestrian to the prosecution of wars by the United States. Rather than seek to amend the Constitution to affirmatively surrender its institutional authority, members are constructively rewriting Article I, Section 8 in a more user-friendly form that does not require express declarations or even reauthorizations. It would combine this abdication of authority with its long-standing failure to limit the use of appropriated funds. This blank check therefore will have not only an unstated purpose but an unstated amount. Under those conditions, we have already had roughly 17 years of war and could just as well have 170 more.”

Anders began his testimony by asserting that no decision by government is graver or more consequential than the decision to go to war.

To be clear, Anders said that under the new AUMF the president would have full control to declare war on any group or nation — including America itself.

“Historically, the most certain route to Congress claiming its constitutional authority and asserting its will is to use its power of the purse. Eliminating funds for unauthorized military engagements, and prohibiting any rebudgeting of existing funds, cuts off the activity. If done consistently, defunding should dissuade a president from taking similar action, and helps restore the role of Congress in deciding whether to take the country to war. Congress should use the power of the purse to defund unauthorized military engagements,” Anders testified.

"To apply a medical term 'do no harm,' the first responsibility of this Congress is to make sure that the Corker-Kaine #AUMF does not pass." – @ChrisAndersDC

Napolitano, during his testimony, gave a mini history lesson on the Constitution and separation of powers. He also testified that he believes President Trump’s attacks on Syria were unconstitutional.

“The Constitution is clear that only Congress can declare war and only the president can wage it. Federal law and international treaties provide that — short of defending the country against an actual attack — without a congressional declaration of war, the president can only constitutionally use military force to repel an enemy whose attack on America is imminent or to defend U.S. citizens and property in foreign lands from foreign attack or in aid of an ally pursuant to a treaty with that ally,” Napolitano stated.

He added that, “in the case of the President’s bombing of Syria in April, none of those conditions was met.”

“The Constitution, written in war’s aftermath, strictly limits war’s offensive use only to when the people’s representatives in Congress have recognized a broad national consensus behind it. John Quincy Adams, in his July 4, 1821 address, cautioned that America ‘goes not abroad, in search of monsters to destroy.’” Napolitano testified.

Napolitano argued that “the legislation under scrutiny today would give the president far more powers than he has now, would directly violate Congress’ war-making powers by ceding them away to the president, would defy the Supreme Court on the unconstitutionality of giving away core governmental functions, would commit the U.S. to foreign wars without congressional and thus popular support, and would invite dangerous mischief by any president wanting to attack any enemy — real or imagined, old or new — for foreign or domestic political purposes, whether American interests are at stake or not.”

All #AUMF witnesses agree: there is no constitutional legal basis for US involvement in Syria.

Senator Bernie Sanders also spoke at the hearing, declaring that Congress must reassert their authority and ask tough questions about the wars that we are currently in.

“Let me assure every person here that the abdication of Congress on the responsibility of war has had horrific ramifications,” Senator Sanders said.

Senator Sanders passionately listed wars and conflicts that were engaged without Congressional approval, including the intervention in Vietnam. Speaking on Iraq, he asserted that the Bush administration lied to the American people about weapons of mass destruction leading to the deaths of thousands of soldiers. He stated that this happened because Congress was not asking the hard questions and the White House had a blank check to go to war.

“I think it is very clear that the time is long overdue for the US Congress to respect the constitution of this country,” Senator Sanders said.

Senator Sanders as well as Senator Mike Lee are not on the committees, but Senator Paul allowed them to come speak as they are passionate about the issue.

Senator Paul is the chairman of the Federal Spending Oversight and Emergency Management (FSO) Subcommittee for the Homeland Security and Governmental Affairs Committee (HSGAC).